Thanks Dx - doesn't surprise me. Something I was thinking about. I had a case with Nolans/Cabot, it was my first time dealing with something like this and my lack of experience let Nolans get around the DN requirement and I didn't persist enough. It was my fault, the help on here was fantatastic and you helped me massively. It got me thinking about the SB defence in future cases that. One thing I have noticed from most of the SPC cases, including my own, is the fleecers really struggle to produce a copy of the DN. Let's say if we assume (it's unclear) that SB clock runs from DN/default. If we assume that the fleecers will never produce the DN, wouldn't they have to accept that the SB clock runs from last payment, as they can't prove a DN was ever issued? Would a Sheriff entertain this defence? Example: Example: Last payment - April 2018 Default - July 2018 Date of issue SPC - June 2023 (5 years + 2 months from last payment but within 5 years from default) We issue SB defence, requesting proof of DN. Fleecers don't provide it. Is there any other proof of default? or would the Sheriff have to just accept that 5 years runs from last payment without proof of DN. What do you think?

Thanks DX Re: the no pre action protocol - So for scottish cases they can just issue an SPC without a letter before action? Also was wondering on what your thoughts were on approaching the 5 year SB. Do you find it common for the fleecers to just issue an SPC close to the SB date to avoid it extinguishing and kill the SB or will they all likely just go SB now because of the length of time that has passed. DN notice + 14 days would make all of the accounts SB'd on Sept 2023 - Loan (£3k), credit card (£4k) and overdraft (£2k).

Some further research and digging, came across this: "In light of the decision of the Court of Appeal in the English case of Doyle v PRA Group UK Limited (2019 EWCA Civ 12), I am grateful for Paul Tilley of Wannops LLP for sharing a decision of the Scottish Sheriff Appeals court that was decided in October 2018, and has not previously been published on the Scottish Courts Website. The decision, PRA Group Ltd v MacPherson, considered the same point considered in Doyle, advanced by the PRA Group in the Court of Appeal, and that is when does prescription begins running in a consumer credit agreement? The decision by Sheriff Principal Turnbull found it began running, not on breach of the agreement, but when a default notice was served. MacPherson, it is understood, was relied upon by the PRA Group in the Doyle case." Are we safe to assume that when considering SB, we need to accept it runs from date of Default/issue of DN?

Hi all, I have some Scottish debts approaching 5 years from the date of last payment/acknowledgement. They were all defaulted 3-6 months after the date of last payment. The usual they are involved - Link, Lowells, PRA. No letter before actions received to date. I have a question regarding the recent the Prescription (Scotland) Act 2018 with sections 5 & 13 that came into effect from June 1st 2022. I have searched and can't find any clear guidance regarding whether the: 1. 5 year clock starts from date of last payment/acknowledgement. 2. 5 year clock starts from date of registered default / DN notice Some sources are adamant that the revisions now mean that the 5 year clock starts from date of default/DN. Where as some older articles state it's 5 years from date of last payment/acknowledgment. I guess the worry for some on here would be in a situation where a debtor stops making payments but the creditor doesn't default or issue a DN until 1 - 2 years later and only then starting the 5 year clock. If anyone can offer advice on this it would be much appreciated.

No, but issued an order I'll paste here: "The Sheriff, having considered the written submissions and thereafter having heard from both parties, finds the respondent liable to the claimant in the sum of £1261.96 together with the expenses of the claim in the sum of £150 and thereafter orders the progress of this case to be paused to allow parties to enter into repayment negotiations. This means that all upcoming hearings in this case have been cancelled. No procedural steps may be taken in this case until the case has been restarted. Either party can ask for this to happen by sending an Application to Restart Form to the court and to the other party. Both parties should be aware that after three months, the sheriff clerk may write to you directing that a particular step should be taken. If this is not done, the claim may be dismissed."

Also I thought I would add as well, another mistake I think I've made in this. The Sheriff did not grant decree as I explained it would impact my future job prospects. Instead the Sheriff has paused the case and issued a "finding" basically an order finding me liable for the full sum + £150 expenses. I've now to come to an agreement with Nolans/cabot regarding repayment in affordable amounts. My worry now is that Nolans and Cabot will start to fire on loads of interest, additional charges, costs etc. Any advice you can offer here? I had to contact nolans today and they sent me an I&E but eerily at the bottom of the e-mail it said "we would encourage you to seek your own independent legal advice now"

If they hadn't thrown "repayable on demand" on the table at the last second, I'm fairly certain the Sheriff was about to dismiss the case.

Yeah I think the Sheriff wasn't 100% clued up on it, I relentlessy kept focusing on section 87 for the above reasons. It was going my way until they brought "repayable on demand on to the table". Like you say it had never been mentioned in any of their submissions or docs, so not something I was clued up on. It was at this point the Sheriff dismissed the requirement for the DN. I tried to keep it on the table but the Sheriff made 2 points. - They are not trying to enforce a security - The agreement has not been terminated, but assigned to Cabot who are simply asking for repayment on demand. I argued that Cabot are a debt "purchasing" company, surely for the debt to be purchased the original credit has terminated the agreement and therefore DN is required. Sheriff wasn't interested and explained that it's been assigned, not terminated. Again, in hindsight, with knowledge of this area, I think I could have easily won this, but that's my fault and a lesson learned.

What I should have done if I prepared correctly, was be able to explain to the Sheriff why repayable on demand applies to overdraft facililites and not credit card agreements. This was my first time at a hearing ever, I was nervous and getting questioned on one of the only things I hadn't prepared for. At least I know now and this should be useful for anyone else, you have to prepare for everything coming up. I feel if I explained that correctly, the Sheriff would have went back to the DN notice and dismissed the claim as the Sheriff had already concluded that a presribed DN noticed hadn't been issued. I'm honestly so annoyed at myself.

It is, I know I messed up.

I also just wanted to say a huge thanks to DX and all the other support I received for this. Losing was likely my fault as I hadn't fully prepared for everything that might have been thrown at me. I realise now that I should have challenged the "repayment on demand" argument for Nolans as this relates to overdrafts and not credit cards. A very costly mistake for me but hopefully this is something others can learn from too. Also, I believe the sheriff was very close to dismissing (I honestly thought he was just about to) as he was asking Nolans if a DN had been issued in the prescribed form and agreed with my position entirely, until Nolans countered with the "repayable on demand" argument.

Hey Dx, so I lost, probably my fault but nothing I can do about it. I explained every point regarding Section 87/88. Sheriff did not agree that enforcement of a security is court action and did not agree that default notice is required when assigning all rights. Nolans argued that sums were "repayable on demand" and the agreement was not terminated but only assigned to Cabot. The Sheriff agreed with this. I argued that for the debt to have sold, the agreement must have been terminated and therefore a DN is required. Sheriff stopped me and advised it has been assigned and Cabot have aquired all rights and not terminated I argued that Cabot cannot be the Creditor, they are simply debt purchasers. The Sheriff pointed out that in my defence I state ". The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party." I argued that for the debt to have been sold, the agreement must have been terminated and therefore a DN is required. Sheriff stopped me and advised it has been assigned and Cabot have aquired all rights and not terminated. I got a bit flustered and lost my way at this point. Where did I go wrong? For future reference because I know I messed up here. I didn't expect to be grilled so hard, I thought it would be the other way about and Nolans would be getting grilled. Sheriff lottery? like you said.

Thanks Dx, just had a read, interesting stuff. I guess the one thing going against me for this is that it is a telephone hearing due to new covid process, so they actually don't have to factor in additional costs of going to a hearing etc. So it costs them nothing really to pursue claims to a hearing just now. So I think there's close to 0% chance that they pull out before the hearing. I just need to keep the focus around the DN issue. I also think the sheriff is quite a new/recent appointment so I'm not sure if that's something that might go against me. At the last CMD, I gave my speech about the DN and referred to section 87/88 and importance of it etc etc and the Sheriff simply just put it to Nolans who responded and said it wasn't necessary. The Sheriff then immediately said they would set a hearing. I thought about it more and if the Sheriff was giving credit to my argument about the DN, surely they would give a further order for Nolans to provide the DN? instead of calling for a hearing. I read through a lot of cases and most of them are dismissed before an actual hearing, that's what is getting me a bit worried.

Thanks Dx, what happens if I lose? Can the amount increase? Also I was thinking if the Sheriff does side with Nolans, since they state they are cleaming arrears, shouldn't they only be enititled to a smaller sum? They sent a copy of notice of arrears (from OC) which was dated about 14 days before the account got assigned to Cabot, and they were asking for about £270 in arrears to be paid.

Their list of authorities/docs is same as they list in their written statement. 1. Section 87 of CCA 2. Promontoria RAM –v- Moore 2017 Court of Session 88 3. Law of Contract in Scotland, McBryde Paragraph 12.02. Both case law is in reference to assignation, nothing in relation default notice.